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Juvenile deprivation of liberty is a controversial issue, in particular because the measure is in opposition to the educative goal of juvenile justice. Detention of children is a more acute problem. In Switzerland, although pre-trial – as well as administrative (immigration law) – detention of children under the age of 15 are prohibited, they are inappropriately decided by courts and authorities. The article describes the situation, its legal frame and has a critical look at such practice and decisions.
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The author of this study proposes an analysis of the will of the legislator manifested by the introduction of the institution of preliminary chamber judge. Within this study it is made a brief comparison of this institution with some national legislative precedents, but also in relation to the regulations of other states.
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The paper is based on the non-uniform practice of the courts within the jurisdiction of the Court of Appeal Oradea, as well as from the country, referring to the following situations: the rejection of the proposal for preventive detention during the criminal prosecution; the rejection of the proposal for extension of preventive detention during criminal prosecution; the cessation de jure of the preventive measures; the revocation of preventive measures and the replacement of a preventive measure with other preventive measure. Within this paper the author deals with controversial aspects in the matter of judicial remedies concerning the preventive measures.
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Although the legal doctrine has been less concerned with this subject matter, there are some papers elaborated under the influence of the previous regulations, however, there are quite a few recent papers. In this article, the author makes an analysis of the offences of this special regulation, preferring a classical approach of the subject, the structure being as follows: 1) a brief history of regulations in the field of fishing and aquaculture; 2) the analysis of the offences in terms of constitutive elements, but having in view that some elements are common to all offences, such as, for example, the legal object; these are analyzed by groups, in order to avoid repetition; 3) a few elements of comparative law, by exemplification of some incriminations in the specific legislation of other States.
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The author makes a brief analysis of the relapse into crime in the new Criminal Code and argues the opinion according to which, if the post-execution relapse into crime has been finalised and used in a criminal trial according to the Criminal Code of 1968, the relapse into crime can not be retained according to Article 43 (5) of the Criminal Code and the limits of the punishment can not be increased by half.
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As a systematic mean of exposing knowledge, in a specific and accessible form, the encyclopedia played an important scientific and cultural part, much amplified given the conditions of the age of internet. The encyclopedia of law offers important particularities, linked to its own tradition, the importance of the knowledge it offers and the extraordinary dynamics of the field. The project initiative of a Romanian Encyclopedia of Law answers a historical need, as a work of accomplishment and affirmation of the Romanian culture, in the context of the European and global cultural diversity. Moreover, it stands as an endeavour imposed by the new stage of development in Romanian law. After the finalization of the great legislative reform post-1989, by the adoption and entry into force of the major codes: civil and civil procedure, criminal and criminal procedure, legal doctrine needs a synthesis and conceptual abstraction specific to an encyclopedia.
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Pursuant to Article 914 of the new (Romanian) Civil Code „The owner of the estate recorded in the land register may request at any time the amendment of the mentions in the land register concerning the description, the destination or its surface, according to the law.” In reference to this text, in the case-law there is a controversy, whether, in the first instance, the jurisdiction ratione materiae lies with the court of first instance or with the tribunal. After examining this issue, the author comes to the conclusion that, de lege lata, presently the jurisdiction lies with the tribunal, according to the rule included in this Article 95 point 1 of the new Civil Procedure Code. Likewise, de lege ferenda, the author proposes that such cases fall within the jurisdiction of the court of first instance, having regard to their nature and their reduced complexity.
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The study raises for discussion the meaning of the phrase „independence of justice”, as well as „independence of the judicial authority” and of its constitutive elements, in relation to the „holder of the national sovereignty” and „his supreme representative”. Likewise, it is noted that the approaches in globo concerning the „independence of justice”, whether expressed in public or within the content of some normative acts, can sometimes intensify the process of „fetishism” of the „judicial authority”.
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The regulation of the dismissal of employees in the national legislations is carried out, as a rule, either in casuistic system, or conditioned by the existence of a justified reason, or without imposing the requirement of no reason. In Romania, the regulation of the dismissal has in view the cases strictly provided by the Labour Code and any other special laws. However, there are some states of the European Union, as well as on the North American, South American, African continent or on the Australian continent, where the possibility of dismissal without cause of employees is admitted. In the spirit of flexibilization of the labour relations, in this study it is deemed useful that the dismissal without cause of employees be regulated in Romania as well, as an exception from the casuistic dismissal, and only with application limited to certain categories of employees (those pursuing an intellectual activity and, particularly, those who hold management positions). In order to ensure adequate protection of employees, the dismissal without cause should be conditioned by the grant of longer periods of notice, that are superior to those in the common law, determined according to seniority of employees at that employer, and to the payment of some monetary compensation, also established depending on the seniority at that employer, following that these measures be strengthened by the sanction of nullity applied to the dismissal that does not comply with these conditions.
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The (Romanian) Labour Code (Law No 53/2003 – republished) regulates (Article 88 et seq.) the legal institution of labour law of the „temporary labour contract”, which has Directive 2008/104/EC of 19 November 2008 as „European” legal basis. In the legal literature of labour law from Romania a controversy has arisen, whether the „mission” performed under a „temporary labour contract” may be considered or not as secondment [within the meaning of Article 45 et seq. of the (Romanian) Labour Code]. The position of the author of this study is firm, in a negative way, and, as a result, the employee in question is not entitled to the special rights regulated for the employees on secondment provided by Article 46 (4) and Article 47 of the Labour Code.
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The current modality of regulating the institution of suspension can raise two categories of problems: on the one hand, problems of systematization of the matter, problems of qualification of the various cases of suspension as being of law, on the initiative of the employee, on the initiative of the employer or by the parties’ agreement, problems of drafting of suspension assumptions and problems of drafting of the regulation. On the other hand, the current regulation also creates difficulties of substance, which can lead to confusions and inconsistencies. Based on the consideration of the legislator’s option to group the different causes for suspension within the same chapter – otherwise a meritorious option –, this paper intends, however, to draft de lege ferenda proposals for the improvement of the regulation, both on the substance and in terms of form of the regulation.
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The problem of admissibility of revocation of the legal acts of labour law issued by the employer has been disputed for more than four decades. Within this framework, this study supports the affirmative solution, namely that of revocability by the employer of all its unilateral acts. Essential arguments consist in the specific nature of the labour legal relations, specific nature which excludes the application of the civil rules as rules of common law, according to Article 278 (1) of the Labour Code. While in the civil law the unilateral legal acts are, as a rule, irrevocable, in the labour law – an autonomous branch of law – the same category of acts are revocable.
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The amendments brought to the new Civil Procedure Code by the Law No 138/2014, especially in the matter of enforcement, have produced significant mutations in the matter of administrative disputes as well. In the context of the amending provisions brought to the Law on administrative disputes No 554/2004 by the Law No 138/2014, this study intends to make an analysis of the judicial remedies that may be exercised against the judgments delivered by the background courts in matters of administrative disputes, as well as an analysis of the procedure of enforcement of the final judgments, delivered by these courts.
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Within the new Romanian law for preventing insolvency and for insolvency (Law No 85/2014) a regulation of novelty is represented by the provisions of Article 182 (1) and (3), according to which the judicial administrator/judicial liquidator may be held liable for exercising his duties in bad faith or in gross negligence, but not if he acts in good faith within the limits of the duties provided by the law and of the available information. This new regulation in the matter is analyzed in detail in this study.
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Inconveniences of neighbourhood are regulated autonomously in Article 630 of the new Romanian Civil Code, as judicial limits of the right of property. The paper analyzes the inconveniences of neighbourhood in the light of the relation to the abuse of right, because it has been for a long time the main instrument of settlement of the conflicts arisen in the state of neighbourhood. In this regard the author emphasizes that, unlike the abuse of right that involves, in all its forms of manifestation, the existence of guilt and the illicit act, by engaging the tort civil liability, the inconveniences of neighbourhood oblige the owner to provide reparation only if they are abnormal and are produced by the normal and licit exercise of the right. The foundation of the obligation to repair the created inconvenience is equity, the only one that can adjust to the conditions required by the legal situation specific to abnormal disturbances of neighbourhood. By applying equity, the court sets the judicial limits in the exercise of property, separate from the legal limits or from the conventional ones, expressly regulated by the new Civil Code, for private interest.
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As the author herself states, the purpose of this study is to identify the sources of the international law which grounds the interdiction of the „hate speech”, as well as the manner of their perception and application at European level, particularly in the case-law of the European Court of Human Rights. In this respect there are presented: the foundations of the interdiction of the „hate speech” at universal and European level; the elements analyzed in this respect by the European Court of Human Rights (reference to the context of the speech; instigation to hatred on grounds of race and religion; negativistic and revisionist speech); the regulations adopted by the Council of Europe and by the European Commission against Racism and Intolerance; the normative framework of the European Union on racism and xenophobia, and, finally, the reference of the current Romanian criminal legislation to international exigences. -
Announced in theory, present in practice, and recognized everywhere, „flexible law” is seeking its own accreditation at a doctrinal level. Covering a number of highly heterogeneous normative instruments (directives, advices, charters, codes of conduct, et al.) having as a common element the fact of being imposed not by constraint, but by the adhesion of its recipients, it manifests itself specifically in international law (as „soft law”), EU law (as a method of governance), or internal order (as a lever of achieving the functions of the state). In relation to proper law („hard law”), flexible law manifests itself either as its precursor, in the process of adoption, a companion in its enforcement, or, in certain situations, as a substitute. Knowing diverse national experiences, flexible law presents itself as a factor of simplification and improvement of the quality of legal regulations.
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In this article the author raises for discussion some theoretical and practical issues referring to the judicial control and to the judicial control on bail, preventive measures which have been regulated in this form in the new Criminal Procedure Code, focusing on how they are implemented, in order to avoid some errors or confusions related to their interpretation and application.
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In this article, the author presents the foundation of criminal substantive law of the safety measure of special confiscation, which concerns the category of goods obtained from committing criminal acts, as well as of the safety measure of extended confiscation, in both situations the analysis being focused on the assumption that the goods have been alienated by the defendant and they have ended up in the patrimony of other persons. Further on, it is made an analysis of criminal procedural law of the situation of the persons – other than the defendant – whose goods are subject to confiscation in the course of the trial. From the perspective of guaranteeing the right to a fair trial for these persons, the author detects a series of problems of interpretation or even of legislative gaps. Finally, there is a conclusive chapter of the article accompanied by de lege ferenda proposals corresponding to the criticism which the author has developed and argued by reference to the current legal texts.
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This study raises for discussion the condition of full recognition of facts and changing the legal classification within the trial procedure in case of recognition of accusation. A deed, which the defendant must recognize, means the act of conduct committed under both its sides, objective and subjective, as well as all the circumstances surrounding this act, regardless of their nature and of the moment when they occur in relation to the act itself. The defendant may contest the legal classification established by the public prosecutor and may benefit from the settlement of the case in simplified procedure only when the contestation against the legal classification is not based on a change of the state of facts.
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This paper presents a brief analysis of the problems raised by the offence of theft. The authors emphasize, on the one hand, the close connection between these problems and some errors occurred in the civil theory of possession, and, on the other hand, some shortcomings of the current definition of the offence of theft. Similarly, there are presented some possible corrections, both at theoretical level and at legislative level.
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In this study, the author, having regard to the provisions of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998, as well as to the jurisprudential situations in this matter of the Court of Justice of the European Union, in the end comes to the conclusion that, in case a Romanian citizen obtains the professional qualification in one of the Member States of EU (or of the European Economic Area or of Switzerland), other than Romania, and he wants to practise in Romania, under the professional title thus acquired, the Romanian legal regulations referring to this legal classification (in this case, of Chapter VIII of the Law No 51/1995 on the organization and practice of the profession of lawyer) will become applicable.
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Law No 78/2014 regarding the regulation of volunteering in Romania provides that a volunteer agreement can be concluded by any natural person „who has acquired capacity to work according to the legislation in the field of labour.” Whereas this phrasing is likely to generate controversies and discussions (the Law No 78/2014 being a law in the field of civil law, and not in the field of the labour law), the author examines precisely at what age minors may conclude volunteer agreements. The author’s conclusion, resulting from the corroboration of Articles 41–42 of the Civil Code with Article 13 of the Labour Code, is that: minors may conclude volunteer agreements after they turned 14, but between 14–16 years of age the consent of their parents, guardians, etc., is also required and, after the minor turned 16, he may conclude such an agreement himself, without the above-mentioned consent.
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The article analyzes the advantages which the settlement of disputes by means of arbitration has to offer. Arbitration is an exception from the principle that administration of justice is done by the courts and represents that effective legal mechanism, designed to ensure a fair, faster and less formal, confidential trial finalized by judgments subject to enforcement. Most patrimonial and non-patrimonial causes may be settled by way of arbitration, so that this method of settlement of disputes can be chosen by parties, instead of the common law justice. The conclusion that can be drawn is that, in order to relieve the courts of their role, arbitration is a viable alternative of settlement of disputes.
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In this study, the author explains the concepts of: structure of the registered capital; general pledge of the creditors; registered capital; difference between the registered capital and the patrimony of the company; difference between the registered capital and the equity capital (net assets); difference between the registered capital and the value of the company, as well as the problems of the legal regime of social contributions after payments, as all of the above follow from the Law No 31/1990 (republished) on companies.
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The Romanian Labour Code (Article 80) provides that, in case the dismissal was made groundlessly or unlawfully, the court will decide its cancellation and will order the employer to pay a compensation in cash. If the employee expressly requests it, in addition, the court will restore the parties to the situation prior to the issuance of the act of dismissal (therefore it will decide the reinstatement of the employee to the position held). If the employee does not request to be reinstated to the position held, the individual labour contract will cease de jure on the date when the judgment remains final. Whereas the regulation of the Labour Code in the matter (the reinstatement to the position held, if the employee so requests) is, in the author’s opinion, overly rigid, a series of de lege ferenda proposals are made in this study, in the sense of promoting a more pliable (flexible) solution, as regards the mandatory reinstatement to the position, if the employee so requests, in a given case.
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This article aims to analyze a wage increase for people who traditionally have a PhD title and are working in the field in which they obtained this title. Up to the adoption of the legislation on uniform remuneration in budgetary system, all those who had obtained a PhD title received, without distinction, a wage increase for PhD. The current legislation has provided the inclusion of this increase, as a transitional compensatory amount, in the base salary, the basic pay/salary or monthly allowance, for the employees that had it to be paid on 31 December 2009, but not for those who have won the PhD title after this date. That legislation created a discriminatory situation, on which the National Council for Combating Discrimination was notified, and this has expressed a specialised opinion, which advocated for the competent authorities of the State, Parliament and the Government to proceed to eliminate the difference in legal treatment, so additional salary entitlement to be recognized by the legislature to all employees, regardless of the date on which it was awarded a PhD title. To this end we propose the appropriate modification of the law.
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The right to protection of personal data is essential for the respect for some fundamental rights of the citizen, including in his capacity of employee, in particular the right to private life. The labour legislation contains some provisions that can guarantee respect for this right, which they explicitly establish, however they can not be considered separately from the Law No 677/2001. The reasons that justify the processing of personal data of employees are those expressly and restrictively provided by the Law No 677/2001 on the protection of individuals with regard to the processing of personal data and the free movement of such data, and the employees have the rights regulated by this law: the right to be informed, the right of access to processed data, the right of intervention upon the data, the right to object and the right to take legal action.
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Pursuant to Article 65 of the (Romanian) Labour Code, the dismissal of the employee due to the dissolution of his workplace, for one or more reasons not related to this employee, involves, according to paragraph (2) of this text, that such a dissolution „be effective and have a real and serious cause”. Having a view that in the case law there is a difference of opinions on the above-mentioned phrase, the author makes an exhaustive analysis of the text of Article 65 and comes to the firm conclusion that, in case of dispute, the court must determine whether, in this case: – the dissolution of the workplace has occurred due to a real cause, therefore the cause was objective, of an undeniable nature; – the cause is serious, so it has a certain degree of gravity, with harmful consequences for the employer, thus requiring the dismissal of the employee; – if, following the principle of good faith, the employer has used, prior to dismissal, all the other possible legal remedies, so that the dismissal had only been a last resort.
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Environment protection represents a more and more important issue in terms of multiplication of the risk factors for the ecological balance, necessary for the normal course of life, so that it is required to act with more determination in this field, by increasing the weight and the severity of the repressive means against those who significantly prejudice the specific values. As such, the author shows that it is necessary that the role of the criminal law be amplified in order to sanction the deeds that seriously damage the environment, with negative consequences for the quality of life of the human beings and of the other living beings.
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Analyzing the jurisdiction of the courts as it is regulated by the new (Romanian) Civil Procedure Code (Law No 134/2010, republished, entered into force on 15 February 2013), the author comes to the conclusion that this Code regulates a single case of alternative jurisdiction of public order, that is Article 113 (1) point 1 („Besides the courts provided in Articles 107–112, there shall also be competent: 1. the court having jurisdiction over plaintiff’s domicile, in the applications concerning the determination of filiation;...”).
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Marea Adunare Națională dela Alba-Iulia, din 18 Noembrie/1 Decembrie 1918, a îmbrăcat, mai presus de orice îndoială, caracterul de adunare constituantă. Alcătuită din reprezentanți ai Românilor din teritoriile aflate sub imperiul Marelui Sfat Național Român1 – representanți pe categorii profesionale și sociale pe de-o parte, pe circumscripțiuni electorale pe de alta2 ea a fost, în mod cert, icoana juridică a vrerei întregii suflări românești din Transilvania3. Grandioasele proporțiuni ale acestei adunări se reliefează ca un eveniment fără precedent în istoria noastră națională, ca un eveniment cu puțini corespondenți în cea universală. Voința națională și-a găsit o expresiune unică prin vigoarea cu care s’a manifestat – cu prilejul acestei zile memorabile. -
Recursul în casație este inadmisibil dacă cererea formulată nu conține mențiunile privitoare la hotărârea judecătorească atacată și la cazul de casare invocat. Absența celor două mențiuni influențează negativ inclusiv îndeplinirea celorlalte condiții de admisibilitate a recursului în casație. În primul rând, atât timp cât nu se menționează o hotărâre judecătorească anume, nu poate fi verificată condiția de admisibilitate referitoare la obiectul recursului în casație și nu se poate răspunde la întrebarea dacă recursul în casație s-a formulat de către o persoană ce are calitatea de parte în sens procesual. În al doilea rând, inexistența vreunei mențiuni privitoare la hotărârea judecătorească atacată constituie un impediment în calea determinării momentului de la care termenul de recurs în casație a început și a celui la care s-a împlinit. În al treilea rând, lipsa mențiunii privitoare la cazul de casare invocat face să lipsească și motivarea incidenței vreunui asemenea caz în speță.
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Referitor la perioada de timp în care inculpatul poate fi tras la răspundere penală, potrivit art. 154 teza finală C.pen. anterior [art. 186 alin. (1) teza finală C.pen. actual], luna și anul se socotesc împlinite cu o zi înainte de ziua corespunzătoare datei de la care au început să curgă. Altfel spus, ceea ce se calculează potrivit art. 122 rap. la art. 154 C.pen. anterior este perioada de timp în care inculpatul poate fi tras la răspundere penală, ceea ce se situează ulterior acestei perioade urmând a intra pe domeniul prescripției speciale a răspunderii penale.
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Contractul de asistență juridică învestit cu formulă executorie, în condițiile legii, constituie titlu executoriu cu privire la restanțele din onorariu și alte cheltuieli efectuate de avocat în interesul clientului. Este nelegală executarea silită pornită pentru o sumă pe care creditoarea o apreciază ca fiind datorată cu titlu de prejudiciu pentru încălcarea obligațiilor contractuale. Creanța nu reprezintă o plată pentru o activitate profesională desfășurată de societatea de avocatură, ci o despăgubire pentru încălcarea clauzelor contractuale de către contestator, având astfel caracterul unei clauze penale. Din această perspectivă nu prezintă relevanță în ce măsură creditoarea putea desfășura activități de intermediere sportivă ori dacă putea pretinde debitorului executarea obligației garantate potrivit contractului de ipotecă mobiliară pentru o nerespectare a obligațiilor asumate în cazul unui transfer. Nu este permis ca prin convenția lor părțile să poată ca, sub denumirea de „onorariu”, să-și creeze un titlu executoriu pentru o creanță care în realitate este o despăgubire.
